The Origins and Development of the Protective Jurisdiction of The Supreme Court of New South Wales

This paper is a detailed examination of the historical development of New South Wales’ mental health laws and of the Supreme Court’s Protective Jurisdiction, written by a former Justice of the Supreme Court of NSW. Philip Powell AM QC covers the laws applicable in the young colony leading up to the consolidated and revised version of The Lunacy Act 1898 (NSW), which remained in force, with some amendments, until 1958. He argues that its replacement, The Mental Health Act 1958 (NSW) made only cosmetic changes until 1970 when the Office of the Protective Commissioner was created. Powell then covers changes in the law relating to mental health from 1982, when he began his term in the Protective Division of the Supreme Court of New South Wales, and his own activities in this respect. He examines the impact of the Guardianship Act 1987 (NSW) and the Mental Health Act 1990 (NSW) in detail. The concludes with a list of reported and unreported judgments of the Protective Division.

CONTENTS

Foreword by The Honourable R S McColl AO

Introduction

The Royal Prerogative

Its nature / How invoked and exercised

Those the subject of the Prerogative

Idiots / Lunatics – Subsequent developments

Involuntary detention and treatment

The first lunatic ayslum / Subsequent developments to 1788

The founding of the colony

The inherited law / Governor Phillip’s commission / The first courts

Early examples of the exercise, in the colony, of the Prerogative

The Second Charter of Justice – a Supreme Court – No jurisdiction in lunacy

The Third Charter of Justice – The Supreme Court – Jurisdiction in lunacy

The Australian Courts Acts 1828

Involuntary detention and treatment

Statutory changes, meantime, in England / The law in the colony until 1843 / The Dangerous Lunatics Act 1843

The Lunacy Regulation Act 1853 (UK) and its effects

Involuntary detention and treatment – Further statutory developments in New South Wales

The Lunacy Act 1878 (NSW)

The Lunacy Act 1890 (IMP) – The distinction between unsoundness of mind and mental infirmity established